Sanctuary? The status of campus protections for immigrants and undocumented individuals

Earlier this week, Dreamer and DACA recipient Daniel Ramirez was released from US Immigration and Customs Enforcement (ICE) custody, ending his six week detention. At the same time, ICE agents recently arrested two individuals with a history of DACA protections in Portland, Oregon: Emmanuel Ayala Frutos, and Francisco J. Rodriguez Dominguez. Despite case law from around the country that have ruled ICE detainers legally insufficient to hold someone in jail, ICE continues to issue weekly reports labeling sheriffs who do not detain individuals suspected of being in the country illegally as uncooperative. As ICE and the Department of Homeland Security (DHS) continue to heighten immigration enforcement efforts around the country, and state legislative sessions enter their final days, immigrants and undocumented students, faculty, and staff on campuses around the country continue to find themselves in uncertain and unsettling waters and campuses are exercising caution and care to provide protection without jeopardizing state or federal funding.

In February, we explored the history of deferred action for childhood arrivals (DACA) and held a live briefing providing an update on the status of DACA in the first few weeks of the Trump Administration. As we are nearing the end of Trump’s first 100 days and heading in the April Congressional recess, DACA protections are still in place, though many fear increasing action by DHS and ICE. While the authority of DHS and ICE does not stop at the campus border, schools, churches, and hospitals are considered “sensitive locations” where DHS and ICE officials should generally avoid enforcement actions. Nonetheless, students who are undocumented and not DACA recipients, or who are registered under DACA but who are believed to have violated one or more of the terms of the program, may be identified and taken into custody by federal agents in other locations.

In efforts to ease concerns among immigrants and undocumented students, faculty, and staff, several campuses have borrowed from some cities and counties and declared themselves sanctuary campuses, a term that has no clear legal standing and which may open campuses to federal or state sanctions. The Trump Administration has already attempted to squelch sanctuary city or county policies through Executive Order: Enhancing Public Safety in the Interior of the United States, authorizing federal agencies to “ensure that jurisdictions that fail to comply with applicable Federal [immigration] law do not receive Federal funds, except as mandated by law,” though is remains unclear what authority the Executive Order grants and whether or how it would apply to campuses as opposed to cities, counties, or states.

In the past few months, eleven states have considered seventeen pieces of anti-sanctuary legislation that would affect college campuses, with eight states targeting legislation specifically at colleges or universities. While Mississippi HB 600, which would have prohibited campuses from providing sanctuary for “illegal alien students”, failed, Mississippi SB 2710, which prohibits state agencies, including college campuses, from creating or enabling sanctuary policies, was enacted on March 27, 2017. Of the remaining legislation specifically addressing college campuses, only Indiana SB 423 has passed the first chamber, though it has progressed to a second reading in the state Senate and may pass in the remaining 22 days of the Indiana legislative session. Five of the remaining dozen bills have also failed (four in Mississippi and one in Virginia), and only one – Texas SB 4 – has passed the first legislative chamber.

On the other hand, legislation has been introduced in six states, including two where it has passed both chambers of the state legislature (California SB 54 and New Jersey SCR 134). These bills would maintain current or grant additional protections for immigrants and undocumented individuals in municipalities and on college campuses. Nevada, Illinois, Maryland, and Texas all have similar legislation, though given the progress of the aforementioned Texas SB 4, it is uncertain whether a bill supportive of immigrant and undocumented individual rights will progress in Texas.

Given the possible uncertainty around sanctuary campus designations, campuses and campus officials, including student affairs professionals, should exercise caution in promising more protection to students, faculty, and staff than they are legally allowed to provide. All students, regardless of their documentation or citizenship status, are entitled to the same expectations of privacy under the Family Educational Rights and Privacy Act (FERPA). FERPA does allow schools to disclose education records “to comply with a judicial order or lawfully issued subpoena.” Additionally, schools may disclose, without additional consent by students, “directory” information which may include the student’s name and address. Citizenship or immigration status is generally not considered “directory” information, though institutions are allowed some flexibility in setting their own “directory” information. You can check with your campus Registrar or Institutional Research office for additional information on what data elements are considered “directory” information for your campus.

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